Divorce or Annulment?

January 11th, 2019

A marriage is not always simple and straightforward – many people may be unaware of the following different types of marriages, which need to be distinguished as they have very different ways of being brought to an end:

Valid Marriage

Void Marriage

Voidable Marriage

Marriage of No Legal Significance

Valid Marriages

The most common form is a valid marriage. When a marriage is entered into with compliance with the necessary formalities and the consent of both parties, the marriage is valid. This means that the only way for it to be brought to an end is with a divorce.

Void Marriages

A void marriage is not recognised as legally valid and, thus, in the eyes of the law, the marriage never existed. For example, a couple going through a ceremony in a hot air balloon in California, omitting the legal requirements of a marriage in that state.

The Matrimonial Causes Act (MCA) 1973 at section 11 sets out the grounds upon which a marriage is void:

a) (i) the parties are within the prohibited degrees of relationship; (i.e. parent and child, siblings, grandparents, aunts/uncles etc but cousins are not included) (ii) either party is under the age of sixteen; (parental consent is required for those who are 16-17 except in Scotland) (iii) the parties have intermarried in disregard of certain requirements as to the formation of marriage; (these formalities are set out in section 49 and they only make the marriage void if one party knew that the formality was not met)

b) that at the time of the marriage either party was already lawfully married;

c) that the parties are not respectively male or female; (this has now been repealed by virtue of the marriage (same sex couples) Act 2013)

d) in the case of a polygamous marriage entered into outside England and Wales, that either party was at the time of the marriage domiciled in England and Wales.

For civil partnerships, the same reasons as above apply to make the partnership void along with an additional circumstance which is if the parties are not both of the same sex – Civil Partnerships Act 2004 section 3 (1) (a).

Void marriages may only be ended by an annulment. This means that the parties are not divorcees; any future marriages entered into are treated as their first marriage.

Voidable Marriages

Voidable marriages are flawed but one can still be a valid marriage if both parties wish for it to be so. Alternatively, one or both parties could choose to have the marriage annulled.

The Matrimonial Causes Act 1973, Section 12 (1) sets out the grounds on which a marriage is voidable:

(a) that the marriage has not been consummated owing to the incapacity of either party to consummate it. This, as well as part

(b), only applies to couples of the opposite sex. It was based upon the idea of marriage as a spiritual union – sexual intercourse was necessary to complete the sacrament of marriage. There needs only to be one act of consummation, which is defined as nothing other than penetration by penis into vagina which is ‘not partial and imperfect’. (b) that the marriage has not been consummated owing to the wilful refusal of the respondent to consummate it. It is not possible to apply for an annulment based on a person’s own wilful refusal – only their partner’s. There must have been a ‘settled and definite decision… without just excuse.’ This is difficult to satisfy, and must be more than simply a lack of attraction or dislike of the other partner. It is difficult for a Court to determine whether there was inability or wilful refusal.

(c) that either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise. Anyone petitioning for nullity under this ground must bring their petition within three years of the ceremony. Firstly, duress has a reasonably high bar and must be more than, for example, simply an arranged marriage. Mistake is a very rare occurrence and might only happen where, say, the petitioner was unaware of the respondent’s real identity or was completely unaware that they were entering into a marriage. Finally, unsoundness of mind must occur at the point of the marriage, and be where the person does not understand the consequences and responsibilities arising from a marriage.

(d) that at the time of the marriage either party, though capable of giving a valid consent, was suffering (whether continuously or intermittently) from mental disorder of such a kind or to such an extent as to be unfitted for marriage;

(e) that at the time of the marriage the respondent was suffering from venereal disease in a communicable form which refers to a sexually transmitted infection – which the other party is not aware of.

(f) that, at the time of the marriage, the respondent was pregnant by some person other than the petitioner. The petitioner must not have been aware of this before they were married. This only applies to a respondent who is a woman – if the groom made another woman pregnant, an annulment is not possible.

Marriage of no Legal Significance

A marriage of no legal significance (MONLS), alternatively, has no resemblance to a legal marriage. For example, in one case, a couple invited some friends round and said kind things to one another at their home. This was nothing like a legal marriage.

Distinguishing the types

To simplify, if a couple attempted to go through a ceremony of marriage and any departure from legal formalities is small and/or the parties were unaware of the departure then they will have a valid marriage. Alternatively, if they knowingly partook in a ceremony which departed from the formality requirements but still bore the hallmarks of a marriage, it will likely be a void marriage. Finally, if the event looked nothing at all like a marriage, it will be a non-marriage. Voidable marriages are in a different category and only apply in specific circumstances, as outlined above.

It can appear that there is very little distinguishing these different types, although it is important to be aware of which type is had so that the correct procedure to end the marriage can be followed. Those who seek an annulment of their marriage can do so at any time from the marriage’s inception, however, if a person seeks a divorce, they must wait a year. Importantly, the law offers financial assistance to those who have a valid or even a void marriage, however, not to those with a MONLS. Clearly, those who were not married in any way, shape or form has no matrimonial claim against the other for financial relief. It is for this reason that some husbands/wives may try to argue that there was no marriage so that they are not liable to the other for maintenance or any sort of division of the financial assets. This, understandably, is not any ease case to make. If you would like some advice in relation to marriage, divorce or other Family issues, please contact a specialist at Hawkins Family Law at enquiries@hawkinsfamilylaw.co.uk or on 01908 262 680.

Written by

Holly Mullen

PA

Having recently graduated with her first class honours degree in law from the University of Bedfordshire, Holly is keen to explore her interest in Family Law. She has previously volunteered with public legal advice services and hopes to eventually qualify as a family Solicitor. Holly joined Hawkins Family Law in August 2017.

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